Author Archives: jaimerhamilton

The Gender Brief Gap

Life comes at you in waves. I wrote this blog back at the beginning of March, ready to publish the moment that I had finished the trial I was in at the time. There are ways that seems a lifetime ago. Maybe even a different life. Events big and small meant that this blog did not get published then.

Now I have come to realise that often there isn’t going to be the perfect time to do all we intend to do, that waiting can mean missed opportunities. I know we all have a host of problems that we face but this was important enough to me to have written about when we all, perhaps, were someone else. And so it is still important to me now. Important things should not go unsaid.

There is a significant issue which is prevalent in the legal world. It is something which I have always known was there but has really become apparent to me in recent times.

A little background: Before becoming a QC a significant proportion of the work I did were sex cases. My diary also contained serious violence, fraud and drugs but I was not someone who went from one “big” multi-handed trial to another. I have written before about how the legal profession seems to value some areas of work more than others, that the diary of “paper heavy” fraud trial is seen as being better than back to back sex trials. It would appear that we have forgotten that complexity is not only measured by page count and ELH.

Now I am a QC, my work has changed. And it is that first twelve months of being in silk which has really brought something home to me – there is a gender brief gap. Men are disproportionately briefed in the “serious” cases that involve murder, guns, drugs and fraud.

I can go back to November 2018. In the run up to finding out I had been successful in my application and then in the period straddling my appointment, I was the junior in a couple of cases. From March I have, with the exception of one trial that was leftover from my junior practice, done a number of cases in Silk. From November 2018 the subject matter in each trial has been; Trial A – double murder in a gang war; Trial B – conspiracy to murder in a gang war; Trial C – a grooming gang; Trial D – murder by strangulation; Trial E – joint enterprise murder; Trial F – joint enterprise murder with a firearm. Interspersed amongst those trials have been other cases but I want to just focus on the trials. These are the cases where judges have granted certificates for the instruction of a QC due to the seriousness and complexity of the case.

Let’s now look at each case in turn:

Trial A – 7 counsel in total, 3 QCs and 4 juniors. Total number of women? 0

Trial B – 21 counsel in total. 7 QCs and 17 juniors (3 of whom took Silk during the case). 4 women. That’s 19% of counsel in the case were female.

Trial C – 7 counsel in total, 1 QC and 6 juniors. 3 women. That’s 42%.

Trial D – 4 counsel in total, 2 QCs and 2 juniors. No women.

Trial E – 10 counsel in total. 5 QCs and 5 juniors. No women.

Trial F – 17 counsel in total. 8 QCs and 9 juniors. 1 woman. That’s 6%.

In the cases trials I have conducted in the last 18 months, only 12% of other counsel have been female. Notably, if you take out the one sex case that I did, this falls to 8%.

None of the cases have featured a female QC who was instructed in that capacity (one of my fellow new Silks was in Trial B with me which we started out as juniors).

It is entirely possible that my workload is unrepresentative, it is a statistical outlier. Yet when I look at work to come I reckon there are probably something like 58 counsel involved in those cases. At the present moment in time there are two women involved, one who prosecutes a sex case and one who is the prosecution junior in a baby shaking case.

I also know that every female barrister that I have spoken to about this will recognise the picture I paint. They have the experience of being the only female in multi-handed cases. They know that their talented female counterparts are not instructed in such work in the same volume as their male colleagues.

There are factors at play such as the retention of females at the criminal bar but the attrition rate is not such as explains this. This is not a question of there not being females available to conduct these cases because there are. Plenty of them. And whilst I am most reluctant to even have to deal with this potential explanation, the women that are available are more than capable of doing the cases.

So why is it that a pool of available and talented advocates are not instructed in these cases? I am afraid I don’t know the answer. At least not a detailed answer.

In general terms it is clearly a problem that can correctly be labeled sexism. That sexism may be the attitudes of others (clients wanting a male barrister), structural (women are pigeon holed into sex cases), ingrained (courtrooms packed with men are the norm in these cases) or overt, direct sexism.

What I do know is that it is wrong. How do we put it right? I don’t know that either.

That is part of the reason for this blog. I am really interested in the suggestions of others for the solution to this issue.

One thing that occurred to me is that organisations need to be accountable for what happens. We need to be able to see what is going on. Whilst this will not make me very popular in professions which are already burdened with administration, is it not time that we required solicitors and barristers to keep and publish data on the instruction of advocates in certain cases? It is only by transparency, it is only by us all seeing the problem, will the solution emerge. It is only when we all acknowledge the gender instruction gap, will we begin to close it.

Pupils Remote Advocacy Exercise

I am going to conduct a remote advocacy exercise which is exclusively for pupils currently undertaking their first or second six.

The exercise is going to be conducted via Zoom, Teams, Skype or FaceTime, depending on the participant’s preference. The advocacy exercise is going to be a plea in mitigation.

The sessions will be conducted in the week of 20th April, at a time to suit the participant. The exercise will take a maximum of about half an hour.

The process to apply is by sending an email to internship@9sjs.com. The subject header in the email should be “Pupil Workshop 1”. In the body of the email simply tell me your name, your current chambers, the stage of pupillage you are at and your pupil supervisor.

The ten who will be invited to participate will be selected entirely at random. I will email the selected participants to let them know they have been successful. The closing date for applications is 4pm this Sunday, 12th April. I will notify those successful on 14th April.

I will send the material for the exercise to each participant. You will need to do some preparation and the whole point is that you will be doing a piece of advocacy during the workshop. So be prepared and don’t be shy!

Good luck and I look forward to meeting ten of you and hearing your advocacy.

Advocacy Training Session

On 7th March 2020 myself and my colleague from chambers, Mike Lemmy, will be hosting an advocacy training day based in our chambers, 9 St John Street, Manchester. This training will be offered to ten participants. I will pay the reasonable travel expenses for those who attend. Refreshments and lunch will be provided.

To apply you need to be aged 16 years or over on 7th March 2020. This course is open to those that have not yet begun or completed either solicitor or barrister professional qualifications.

The purpose of the day is to provide you with a taster of advocacy and some advocacy training. The day will include talks about advocacy and practical exercises. You will be provided with written materials before the day. The practical exercises will involve participation. Do not worry that you have no advocacy experience at all, this taster session is designed for you, but please be prepared to participate. There is no point coming along and not opening your mouth.

This is the process by which the ten participants will be selected. The application is by email to internship@9sjs.com. This email account will only be used for the purpose of this application and will be disabled once the result is announced. Please only use this email address, do not contact my chambers as this is a personal arrangement and not something that my clerks or others at chambers have any role in organising.

I am afraid I am not going to be able to provide feedback to those unsuccessful and I am afraid only those invited for the session will be notified directly of the outcome. I will announce the names of the final ten on my blog and my Twitter account, so you will be able to check there. Once I know how many applications I am dealing with I will announce the date by which the successful candidates will be notified.

The initial application should include the following details in the body of your email;

  1. Full name
  2. DOB (the session is open to those who are 16 years or older on 07/03/20)
  3. Postal address
  4. Email address
  5. Contact telephone number
  6. Educational history (secondary school onwards, just let me know what you studied and where, I don’t need grades)
  7. Previous legal work experience

None of that information will be used to decide to who is offered the placement, save to ensure your are eligible. All of that information should be provided in the body of the email. Then you need to attach a separate document to the email, either in Word, PDF or Pages format, which answers three questions; (1) What do you consider to be most important skill in advocacy? (2) What is it about you that will make you a good advocate? (3) Tell me a story about yourself.

Please answer all three questions. Being concise in advocacy is an important skill, the STRICT word count for each question is 150 words. The closing date for applications is 5pm on 31st January 2020.

I am hoping to give an opportunity for people to learn a little about advocacy, having some fun along the way. The intention is to inspire and encourage.

Good luck and I look forward to meeting 10 of you on 7th March.

THIS COURSE HAS ALREADY TAKEN PLACE. DO NOT APPLY.

Remote Advocacy Workshop

The first remote advocacy exercise I am going to run is for students, ideally A-Level, undergraduates, GDL or BPTC students. If you are someone that has completed the BPTC but not started pupillage yet, please also feel free to apply. I will be running something separately for current pupils in the near future.

The first exercise is going to be conducted via Zoom. It is available to download for free, you just need access to a device with a camera. I am going to do an advocacy practical for ten students who I will divide into five pairs. The exercises will take place between 8th and 13th April, at a time to accommodate the different pairings. The exercise will take about half an hour per pair.

The process to apply is by sending an email to internship@9sjs.com. The subject header in the email should be “Student Workshop 1”. In the body of the email simply tell me your name, your current status (e.g. BPTC student/undergraduate at The University of Twittersville) and your preferred email address. That is all I need.

The ten who will be invited to participate will be selected entirely at random. I will email the selected participants to let them know they have been successful. The closing date for applications is 4pm this Sunday, 5th April. I will notify those successful on 6th April.

The workshop will deal with one of the areas that many struggle with at first – examination in chief. I will send a guide to examination in chief and the material for the exercise to each participant. You will need to do some preparation and the whole point is that you will be doing a piece of advocacy during the workshop. So be prepared and don’t be shy!

For those that are not selected, don’t worry. During the course of the lockdown I will be offering further opportunities, including similar workshops. Just follow me on Twitter for updates. And for the pupils out there, your workshop will be announced next week.

Good luck and I look forward to meeting ten of you in an appropriate social distance setting!

Difficult Times

The world faces a time of great anxiety with the pandemic of coronavirus/Covid-19. None of us knows how the next few months will develop. We do not know what it means for the health and wellbeing of us or our loved ones.

The Government will introduce a number of measures aimed to combat the spread and impact of the disease. We already know that this will involve significant disruption to our daily lives and the economy. There will be significant periods of time when citizens will be required not to work or will not be able to work due to their health or the health of others.

For the legal profession we will face many challenges, as will many others. For the self-employed Criminal Bar there will be many problems that we share with every other self-employed worker and some that are particular to us.

The majority of the income for a Criminal Barrister comes from trial work. We only get paid for our work at the very end of the case. Trials will be disrupted by problems encountered with our health, the health of jurors, the health of the Judge, the health of witnesses and the health of defendants. That is an awful lot of factors that can go wrong when up to 60% of us will have the same illness within the next couple of months.

Of course they are not the only problems. As of this week it isn’t just a question of not being well enough to attend court. We will have to self isolate in circumstances where we would otherwise be well enough to attend. And in the near future the same may apply if it is a member of your household that has identifiable symptoms.

That’s a lot of reasons why trials may not take place or conclude. And that is before we get to how the MoJ or the HMCTS may decide to respond to the developing situation.

As with many, this is going to provide financial difficulties for the Bar.

We can only hope that the Government will provide assistance across the board. We have to hope that concrete and universal proposals will be made for deferring VAT or tax payments. The choice should not be between paying staff or paying the Government. We should not be paying for HS2 when we cannot pay for our mortgages. It should not be on the basis of HMRC being “understanding”. We cannot be in a position where we have to grind through the bureaucracy of the tax authorities and end up no better off. And, of course, HMRC will be suffering their own staffing issues. We need to know that the money is available to us.

The CBA and the Bar Council need to be talking to the authorities immediately. The rules on payment need temporarily changing. We should be able to bill and be paid for hearings before the conclusion of the case. There should be no necessity for proving hardship. If we have been to court and made an appearance we need to be able to claim that fee. It could be the difference between someone keeping their head above water that month.

We also need to be inventive and altruistic. There must be a way that we, as a profession, can assist our colleagues. Where someone junior has to return a three day trial on the Wednesday because they self-isolated on the Monday, that may be their significant income for that month. Someone will pick up the return and earn the money instead.

Is it possible for us to do something to assist in those circumstances? Would it be possible to compile a register of people prepared to take on the case in those circumstances but either give the fee to the original advocate or share the fee? Would it be possible for Silks to take on those cases and the junior member of the Bar still receive the fee?

This must be possible. I know that April was going to be a month of mainly preparation for myself. I could give up a week of that, to work for free and make sure the junior member of the Bar does not miss out. Or, in the alternative, a dedicated hardship fund to which we contribute for the provision of financial aid to those that are struggling?

This is an unprecedented situation. We need some urgent and imaginative solutions to ease the burden we all face. Those that lead, from the Government to the DPP to the LAA to the senior judiciary to the Bar Council, need to lead. And need to help. It isn’t just the illness which can damage. It is the worry and the uncertainty. We need answers before the questions become problems.

Advocacy Session: The Successful Candidates

I was incredibly impressed with the high standard of applications to attend on the advocacy training day I am hosting on 7th March. I am sure such things are often said as just a platitude. This time it is true. I received 97 entries and, being as rigorous as I could be, my first two reads through could not get me below 26 top class candidates.

I had originally intended to host 10 attendees with my colleague Mike Lemmy. Taking into account time and budget constraints I couldn’t offer places to those 26, much as I would have liked to. I asked Simeon Evans of St Johns Buildings if he could assist and he very kindly agreed. With his assistance I have been able to extend the day to 18 candidates.

The successful applicants are:

Zoe Bradbrook

Juliet Osborne

Matthew Diss

Kate Hardie

Taliesyn Kallstrom

Lee Carrack

Thomas Theakston

Felix Tambling

Jessica Aviss

Lewis Hazeldine

Iman Coan

Lottie Kennett

Kate Dobinson

George Leeming

Sian Cameron

Katharine Rose

Jordon Bayley

Charlotte Gleaves

Once again, I am sorry that some of you missed out. There will be other similar opportunities in the future, so please keep an eye out for them.

Those attending this day will be provided with talks from a number of people from the profession and I am grateful to those who have agreed to give their time. A lunch will be provided where there will be an opportunity to chat with a number of barristers. There will be three practical exercises, for which the 18 will be split into smaller groups of 6, each group being instructed by myself, Mike and Sim. The travel reasonable expenses of all 18 attendees will be reimbursed.

Whilst this is not a “9 St John Street event” I am grateful to my chambers for allowing me to use the conference and seminar suite for this event. Each candidate has given their permission for their details to be posted here, and on Twitter.

A letter from some under 10 years call

I have been asked to post this on my blog, which I am happy to do. Obviously events have overtaken the introductory paragraphs as the result of the ballot have been announced however I understand that the intention is to still send this letter. I post this without comment at all, this is entirely a matter for those barristers below ten years call.

We are calling on all criminal barristers of 0-10 years call to sign an open letter to the Government, written by a group of junior juniors. The letter seeks to express our concerns about the manner in which the recent joint proposal was made, as opposed to expressing a view on how anyone should have voted in the ballot.

To sign the letter, please email criminaljuniors@gmail.com with your name, chambers, year of call and circuit before 12 noon on Sunday 30th June.  The letter will be sent to the Government soon after, before the ballot results are announced on Monday.

To:

Ministry of Justice

Crown Prosecution Service

HM Treasury

Cc:

Bar Council

Criminal Bar Association

Director of Public Prosecutions

We write to you as a group of junior barristers following the joint proposal on fees published on 6 June 2019. We feel compelled to do so out of concern about the nature of the proposal and the future of our profession.

Much has been written about the chronic underfunding of the Criminal Justice System and the Criminal Bar in particular. A recent change in the funding scheme for defence barristers was described at the time by the then-Chair of the Bar as “patch repair”; with the then-Chair of the CBA stating that “no one […] should assume that anything is fixed”.  The reality is that the Criminal Bar remains severely underfunded across the board, such that many young (and not so young) talented people are leaving the profession they love because they cannot make ends meet.

It was against this background that the Criminal Bar Association balloted its membership with two separate questions, asking whether members supported action in respect of a) Prosecution fees and b) Defence fees. There were two separate ballots (and mandates) for good reason.  Whilst chronic underfunding is a common feature to both schemes, the specific concerns and issues with each scheme, as well as the demands of prosecuting and defending, are distinct. The result of the ballot was clear and engagement was overwhelming; 93.86% of those balloted favoured action in respect of defence fees and 94.90% in respect of prosecution fees.

We have since seen the joint proposal circulated through the Bar Council and Criminal Bar Association. The proposal does nothing more than bring prosecutors’ fees in line with Defence fees in relation to a limited number of standalone hearings (not, as was inaccurately reported by some, that Prosecution fees have “doubled”).

As for Defence fees, the proposal merely promises to accelerate a review of limited aspects of funding. There are, notably, no specific commitments against which the Government could ever be held to account.

We are told that the offer is all or nothing: that either we accept the proposal in relation to both the Defence and Prosecution fees or risk losing both.

The DPP was quoted in the proposal as stating “We are committed to introducing a fees scheme that gives a fair deal for prosecution advocates, and is affordable and sustainable. […]”. This is an implicit acceptance that the current scheme, which has not seen a fees increase in 20 years, is none of those things.

In his recent letter to the Prosecution Bar last week, the DPP stated that the proposed changes to CPS fees were “the result of months of work by [his] team at the CPS; work which was ongoing throughout the early months of prosecution fee schemes review”. Taking him at his word that it was “unfortunate” that the CBA ballot above overlapped with this (and therefore presumably had no bearing on the proposal) it is unclear why the prosecution fee proposal should be tied to the defence proposal. As we set out above, action in respect of each area was the subject of a separate ballot.

We see this for what it is; as an attempt to divide and rule – holding prosecutors to ransom for an increase they desperately need (and deserve) at the expense of tangible progress for the Defence Bar. Lord Justice Auld in his review of the Criminal Courts said that the criminal trial is not a game. Neither is this. To accept that prosecutors are underfunded but make any increase in funding contingent on outside factors is, quite simply, to act in bad faith.

It is likely that many of us will vote differently from one another. Know this; it does not follow that this attempt to sow division has been successful. We may vote differently but we will continue to respect and support one another. Whatever the result of the ballot, we all remember at all times that it is not one side of the profession that stands in the way of the other. What stands in the way of our goals is the longstanding and egregious underfunding of our Criminal Justice System. Only substantial investment can begin to address this crisis. You should also know that whether we proceed to direct action next month or wait to hold you to account in November, we will remain united in the face of the common crisis in funding that the Criminal Bar faces as a whole.

Whatever the outcome of the current ballot on the proposal we, the undersigned, wish to make that clear.

Sent on behalf of:

[insert signatures here]

Every Dog has its Day

The white heat of anger feeds the desire to fight the Government at every turn. And we have plenty to be angry about. Years of cuts. Years of politicians badmouthing us. Year after year of our working conditions being eroded. It is the unprecedented sense of fury that now means the Bar stand on the brink of unprecedented action. The sort of action about which I have always dreamt. So why would I say that we should pause now? Why would I say, again, let’s take what is on offer and come back another day?

Some will say I lack back bone, that I am a coward. Some will say that I have self interest at heart. Some will say that I was wrong to say we should back down last time and I am wrong to do so again.

And that is okay. I do not hold a right to be right. I am not someone with all the answers. I am just doing what we all must do, I am listening to the views of others; I am weighing up what I think to be important; I am considering what can be achieved; I am learning the lessons of experience; and I am making my decision.

I have voted to accept the offer.

In 2012 I wrote a very angry letter. It decried the imposition of Fee Scheme C by the CPS. It railed against how wrong it was. It foretold the end of adequate representation of cases on behalf of the CPS. It was signed by 90% of Counsel on the newly formed advocate panels from Manchester. It was sent to the Chair of the CBA, ironically Max Hill. I had meetings with Maura McGowan about it. I had all the anger knotted up inside me. And yet nothing changed. Importantly we carried on doing the work, myself included.

Many will think that this would be an argument in favour of taking action. Again, we have been ignored for years. But I now appreciate that the rhetoric of being abused dogs means nothing in the cold reality of our fight to improve remuneration. What matters is actually improving our remuneration, not Shakespearean speeches or fantasy fee levels. It is about making sure that someone called in 2012, called in the year I was writing angry letters, is paid for things like the second day of the trial, is paid something which is worthwhile to conduct an appeal from the mags and is paid something approaching a reasonable fee when a trial is adjourned.

Once we have achieved that, we can continue to fight to get even better remuneration. We can fight to restore some sense of value to cases with higher volumes of evidence. We can fight to get paid for unused material. We can fight to get paid for the work we do. These are battles to be won, these are battles that can be won. They will not be won all at once.

By mid-July, a point at which we would be mid “no returns”, we will have a new Prime Minister and a new cabinet. That shiny new Boris or Jeremy will have made a lot of promises to get that new job. Those promises will have been to the public about headline grabbing initiatives and tax cuts and to their fellow politicians about jobs in that new cabinet. Those promises will not included more money for the Bar. We have the certainty of an improved offer on CPS fees that we can lock down right now, and a timeframe when we know that we will have to go in battle once again should AGFS not be improved. We need to secure those improvements now, before the political chaos of modern Britain means that cases going unprosecuted is just a footnote to what may lie ahead in Brexit Britain.

The bravery which many talk about being lacking in the leadership of the CBA is in fact the bravery that the Bar show time and time again in being prepared to take action. It is not the route of a someone that lacks courage to stand down from the fight, knowing that they will have to step forward again on another day. And that is what we are doing.

I didn’t back down in 2012, I just didn’t achieve what I wanted. I won’t have backed down in 2022, even if I achieve what I want in 2019. This is a war to be won battle by battle, and on Tuesday the 3rd of September, every counsel who is on day 2 of a trial, every junior counsel who has their non-custody, non-sex case stood out through lack of court time and every junior member of your chambers doing an appeal will be reaping the benefit of having won this battle and the battles that went on before.

That’s why I voted yes to the offer. I do so knowing we will probably be called upon again to act. I do so knowing that there are still cases which are not properly remunerated. But I believe this to be the best way. If I am wrong, if more people believe that we can do better by fighting on in this battle, I will be alongside you, refusing returns and taking part in whatever it takes. But I take the view that we can fight alongside each other now, or after we have secured this win. And I would much rather do what we didn’t do in 2012. I would much rather we improved things now.

WHY I THINK WE SHOULD REJECT THIS DEAL by Simon Csoka QC

Whilst Simon and I disagree on the way forward I am more than happy to host this blog written by him. It is very important that everyone who is voting equips themselves with as much information and viewpoints as possible. The act of disagreeing is a healthy way to make a decision.

I am struggling to understand how anyone can see this deal as anything other than shameless divide and rule. I do not underestimate the immediate impact that the conditional increases from September will have on junior juniors who prosecute.

Any pragmatic strategy against us by the MOJ and Treasury is to determine what is the least costly way of defeating any disruption by the Bar. The CPS advocacy budget should inevitably always be less than the defence advocacy budget. Multihanded cases mean that there are more defence advocates per case. An extra refresher on short cases, appeals and interlocutory hearings make huge differences to junior juniors but are not particularly costly from a Treasury point of view. Paying properly for the prosecution of large cases would require massive investment. There have been no increases for over 20 years. In fact, there have been cuts. Inflation amounts to 73% since 1998: https://www.bankofengland.co.uk/monetary-policy/inflation/inflation-calculator . The reality is that to even to get back to the position in 1998, there would have to be a doubling, at least, of the CPS advocacy budget. I fail to see how taking this offer provides any prospect of that occurring. It will be a cold day in hell first.

Likewise, in relation to AGFS we are 73% down by inflation and actual fees are at best no more than half the remuneration in 1998. It would require an increase in the budget of at least 300% to restore current incomes to the level in 1998. Does anyone believe that there will be a 50% increase let alone a threefold one?

I say this in order to put into perspective how easily pleased we can be. It’s rather like a badly treated dog that is overjoyed when its abusive owner occasionally pats it on the head. At least a dog does not congratulate itself when its abusive owner pays it some attention.

There is no commitment in the joint CBA and MOJ press releases for there to be any extra investment. I fail to see why remuneration for unused material or PPE would amount to extra money as opposed to simply a redesign within the current budget. This applies largely to AGFS but there is no reason why the redesign of the CPS scheme would not follow the same premise with some illusory increases.

The justification provided for suspending action is that the offer to increase prosecution fees will be withdrawn. This is taken seriously by the CBA. If it is a genuine threat, then the same would apply in a few months time. The blackmail then would be along similar lines irrespective of whether it’s a modest increase to the defence or the prosecution. We would be played off against each other on each occasion. A credible threat by the Bar to stop working is being averted by a very modest spend. This is a superb model for the MOJ “going forward” to deal with any dispute. For us, it provides no realistic prospect of ever achieving any significant improvements.

I have not attended any of the meetings with the LAA or MOJ. Perhaps the CBA are right. I doubt it but I cannot be sure. But it is better to test our opponent now than get into an intractable position in 6 months time. The threat of “push it to the members or lose it” has been used for many years. Each time we have ended up with appalling fees. Each iteration of the new AGFS was presented by the MOJ to the Bar Council and Circuit Leaders on the basis that we will only make this offer if you push it for us. Each time the leaders said it was impossible to get more. Each time we got more by not doing what the leaders were being told to tell us to do. Scheme 11 is dreadful. If we had done what we were told originally, we would have got a scheme that was worse that scheme 10. That too, was pushed by the Bar Council and Circuit Leaders as an achievement. Ultimately, we believed scheme 11 was bad, we were told it was good, the CBA now accept it was bad having told us last year to vote for it.

It seems to me that the whole process now starts with an expression of bad faith. One the one hand an acceptance that prosecution fees are wholly inadequate and unfair but a refusal to increase them unless we do hereafter exactly what the MOJ propose. It demonstrates that the MOJ is motivated by pragmatism and by the Treasury. It is not governed by doing what is fair. Who would rationally believe otherwise? We only get near to what we want when it becomes cost effective. The reality of the collapse of the criminal justice would be very costly. We are not obliged to prop it up. We told them we would no longer do so with these derisory fees. Now we are saying we will continue to accept cases even though we have only been offered a fraction of what we asked for. The proposed amendments to the AGFS scheme were supposed to be a stop-gap. We are now told to give up without any commitment to the stop-gap, let alone a proper solution. The collapse of the criminal justice system is now no more than a remote prospect thanks to our acquiescence.

I fear that the real problem is that this shambles of an AGFS scheme was largely designed and then pushed by CBA and the Bar Council. We were told on multiple occasions to vote for it last year and the year before. We were told that the fee projections were scaremongering. This self-inflicted fee cut (which is still presented as a fee increase by the Bar Council) is preventing any effective representation in negotiations. It’s all too easy for the MOJ to claim (as they did last week) that they made further investment last year. I cannot believe that the advocacy spend is actually greater. We can only base it on our own experience. We can’t see the data. There needs to be some acceptance of the huge failure last year so that we can move forward.

I cannot have any faith in the MOJ when they have dictated that the CBA cannot disseminate contrary views to its members. Any deal that has to be pushed by the CBA on MOJ terms is not worth having.

The CBA now argue that the Government will be persuaded by November to make significant increases to AGFS. A year ago they claimed that Scheme 11 was the best we were going to get. Nothing has changed except a belief that this time it will be different. They now believe that we will do much better but do not explain why.

The only thing that changed was the threat of massive disruption. If we call the action off, then the threat will never again be taken seriously. It will have taken nothing more than loose change in Treasury terms to defeat a Bar that was united. Who is to say that the Bar could even be led out to battle again? We instinctively feel that we are being led into another capitulation just as we are winning. I think most of us are getting too cynical to be led out by any fighting talk after this. It’s action now or never.

SIMON CSOKA QC

The Mistake They Made

There are many that believe that making of a single offer in respect of CPS fees and AGFS is a tactical masterstroke by the MoJ or the Government, that this is a tactic of divide and conquer which we are fools to fall for.

I believe it may be the single biggest mistake “the Government” side of these negotiations have ever made.

Each time we have been involved in days of action and no returns up and down the country prosecution counsel have received very similar letters (an example of which is here) telling us that those briefed on behalf of the prosecution should not be involved in the proposed action as the complaint about AGFS is nothing to do with the CPS.

Can you see where I am going yet?

Joining the two issues together is the biggest mistake they could have made. The CBA have made it perfectly clear that the action will be suspended as a whole. That is the term stipulated by the Government. The CBA have also made it perfectly plain that, should the reviews not happen in a timely fashion or should the outcome of the reviews fail to produce new money to cure some of the ills of AGFS, then the action will return. And that, logically, should be all of the action. Defence and Prosecution briefs.

No matter what the outcome of the vote, the CPS have allowed their own argument to be torpedoed. What they have always sought to set apart, this offer has joined together. Rather then dividing us, this offer produces the unanswerable case that action in support of changes to the AGFS is action taken by the whole of the criminal Bar, no matter which side of the courtroom they are due to sit on.

I would also venture to suggest that it would be incumbent on those that prosecute to support those that defend should the decision be to accept the offer. That support is at its most crucial if it should come to us taking action again. I imagine it would be very difficult for the CPS to take back that which they have given by that point but the offer is a global one, if the Government renege on their promises of a speedier review or fail to set right that which is wrong they should face the chaos of both Prosecution and Defence action.

This need not divide us. It provided us with a stronger lever with which to apply pressure. It turbocharges the impact of no returns and days of action. And it was all the Government’s idea….